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Issue Brief: Takings Clause and Local Public Health Agenices

posted on Tue, Jun 17 2014 3:04 pm by The Network for Public Health Law

The Takings Clause in the Fifth Amendment of the U.S. Constitution provides that private property shall not “be taken for public use, without just compensation.” It sounds simple, but it has been a highly debated issue that continues to be argued and litigated in our courts.  As recently as June of 2013, the U.S. Supreme Court handed down a decision that once again highlights the limits of local government land use powers.

The Takings Clause applies to both the federal government, through the Fifth Amendment to the Constitution, and also to the states, through the Fourteenth Amendment.  Some state constitutions have provisions similar to that found in the U.S. Constitution. This brief will provide a basic introduction to the Takings Clause and how it can affect local pub­­lic health agencies and the ability of local governments to promote public health in their communities.

This area of law continues to grow in complexity and can create significant fiscal exposure for state and local governments.  For this reason, legal counsel should be consulted for advice on whether a specific government action is considered an unconstitutional taking requiring just compensation.

View/Download the Issue Brief.